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PART II.

Jurisdic tion of

surrogate

of in

over proof what cases

enumerated.

CHAPTER VI.

Wills and Administration of Estates.

CHAP. 308.

AN ACT to amend article third of title second of chapter
sixth of part second of the Revised Statutes.
PASSED May 6, 1834.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Where officer is

witness.

$1. In any case where a surrogate who would have exclusubscribing Sive jurisdiction to admit to probate any will, or grant letters testamentary, or of administration upon any estate, is a subscribing witness to said will, the same may be proved before the first judge of the county courts of the said county in which said surrogate would have such exclusive jurisdiction, and the said first judge may grant letters testamentary or of administration, in the same manner and with like effect as the said judge is now authorized to do by the third article of title second of chapter sixth of part second of the Revised Statutes, in cases where the said surrogate is precluded from acting by the said article.

CHAP. 460.

AN ACT concerning the proof of wills, executors and administrators, guardians and wards, and surrogates'

courts.

PASSED May 16, 1837.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

$1. The surrogate of each county shall have jurisdiction, exclusive of every other surrogate, within the county for which he may be appointed, to take the proof of last wills and testaments of all deceased persons, in the following cases:

1. Where the testator at, or immediately previous to, his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened:

2. Where the testator, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein:

3. Where the testator, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate:

4. Where a testator not being an inhabitant of this state, shall die out of the state, not leaving assets therein, but assets of such testator shall thereafter come into the county of such surrogate:

5. Where no surrogate has gained jurisdiction under either of the preceding clauses, and any real estate devised by the testator shall be situated in the county of such surrogate.

CHAP. VI.

11 N. Y., 327; 10 B., 531.

of execu

not to be

2. So much of section seventh, title first, chapter second, Accounts part third of the Revised Statutes, as requires the surrogate tors, &c. to record the accounts of administrators, executors and guar- recorded. dians rendered before him, is hereby repealed: but the surrogate shall file said accounts, and shall record, with his decree, a summary statement of the same as the same shall be finally settled and allowed by him, which shall be referred to and taken as part of the final decree.

to keep

fees.

$3. Every surrogate shall keep a book of fees, which shall Surrogate pertain to his office, and be subject to inspection in the same book of manner that his books of records are, in which he shall enter at length and by items the fees charged and received by him on all proceedings had before him under the name of each intestate or testator.

have

S4. The executor, devisee or legatee named in any last Who may will, or any person interested in the estate, may have such proved. will proved before the proper surrogate.

16 B, 143; 3 B., 417.

$ 5. On application to the surrogate, he shall ascertain by What parts satisfactory evidence, the following facts:

to be

proved

1. If the will relate exclusively to real estate, the names and ing will for places of residence of the heirs of the testator, or that upon diligent inquiry the same cannot be ascertained:

upon offerprobate, &c

2. If the will relate exclusively to personal estate, the names and places of residence, of the widow and next of kin of the testator, or that upon diligent inquiry the same cannot be ascertained:

3. If the will relate to both real and personal estate, the names and places of residence of the heirs, widow and next of kin of the testator, or that, upon diligent inquiry, the same cannot be ascertained.

16 B., 143.

guardians

$6. The surrogate shall also ascertain whether any and Special which of the persons mentioned in the preceding section are to be appointed on minors, and the names and places of residence of their general proof, &c. guardians, if they have any; and if there shall be no general guardian within this state, the surrogate shall by an order to be entered, appoint a special guardian for such minor, to take care of his interests in the premises; and the written consent of every person so appointed special guardian to serve as such, shall be filed with the surrogate. The testamentary guardian named in the will to be proved, shall not for this purpose be deemed a general guardian.

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PART II.

Citation to

$7. The surrogate shall thereupon issue a citation requirbe issued to ing the proper person, at such time and place as shall be

proper persons by

name, &c.

therein mentioned, to appear and attend the probate of the will; the citation shall state who has applied for the proof of the will, and whether it relate exclusively to either real or personal estate, or to both real and personal estate: it shall be directed to the proper persons by name, stating their places of residence, or if any of them are minors, to their guardians by name, stating their places of residence. If the name or place of residence of any person who ought to be cited cannot be ascertained, such fact shall be stated in the citation.

8. The citation shall be served on the persons to whom it is directed as follows:

Manner of serving citation.

Proof of

do.

S9. Before proceeding to take the proof of any will, the be made of Surrogate shall require satisfactory evidence by affidavit, of the service of the citation, in the mode prescribed by law. If it has not been duly served on all the persons who ought to receive notice, the surrogate may adjourn the proceeding and issue a further citation for the purpose of bringing in such persons.

1. On such as reside in the same county with the surrogate, or an adjoining county, by delivering a copy to such person, at least eight days before the day appointed for taking the proof; or by leaving a copy at least eight days as aforesaid, at the dwelling house or other place of residence of such person, with some individual of suitable age and discretion, and under such circumstances as shall induce a reasonable presumption in the mind of the surrogate, that the copy came to the hands or knowledge of the person to be served with it, in time for him to attend the probate of the will:

2. On such as reside in any other county in this state, by delivering a copy personally to such person, or leaving it at his dwelling house or other place of residence, in the manner and under the circumstances above mentioned, at least fifteen days before the day appointed for taking the proof:

3. On such persons as do not reside in this state, citations may be served by delivering a copy personally to such persons, or leaving it at his or her dwelling house or other place of residence, not less than fifteen days nor more than ninety days before the day appointed for taking proof of any will; and on such persons as do not reside in this state, or whose places of residence cannot be ascertained, by publishing a copy of the citation in the state paper for six weeks previous to the day appointed for taking the proof.

As amended by Laws of 1840, ch. 384.

What necessary to establish will.

S10. Upon proof being made of the due service of the citation, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. Two at least of the witnesses to such will, if so many are living in this state, and of sound mind, and are

not disabled from age, sickness or infirmity from attending, shall be produced and examined; and the death, absence, insanity, sickness or other infirmity of any of them, shall be satisfactorily shown to the surrogate taking such proof: the surrogate shall inquire particularly into the facts and circumstances before establishing the same or granting letters testamentary or of administration thereof.

CHAP. VL

the wit

be ex

S 11. In case the proof of any such will is contested, and When all any person having the right to contest the same shall, before nesses to probate made, file with the surrogate a request in writing that amined. all the witnesses to such will shall be examined; then all the witnesses to such will, who are living in this state, and of sound mind, and who are not disabled from age, sickness or infirmity, from attending, shall be produced and examined: and the death, absence, insanity, sickness, or other infirmity of any of them, shall be satisfactorily shown to the surrogate taking such proof.

See Laws of 1841, ch. 129; 19 B., 33.

surrogate

S 12. If any such aged, sick or infirm witness reside in the Duty of same county with the surrogate, it shall be the duty of the when wit surrogate, after examining the other witnesses, to proceed with- ness sick. out unnecessary delay to the dwelling house or other place of residence of such witness, and there, in the presence of such persons as may choose to attend, proceed to take the examination of such witness, in the same manner, and with the like effect, as though such witness had attended and been examined before the surrogate on the return of the citation.

See Laws of 1841, ch. 129.

When other

examine

S 13. If such aged, sick or infirm witness reside in a different county from the surrogate, and it shall not be probable surrogate that his attendance can be procured within a reasonable time witness. to which the surrogate may in his discretion adjourn the proceeding for that purpose, the surrogate may in such case, after having examined the other witnesses, make an order adjourning the proceeding in his court to some future day, and directing that such aged, sick or infirm witness be examined before the surrogate of the county in which he resides, and specifying some Monday on or before which the said order shall be delivered to the surrogate directed to take the examination: a copy of which order, under the seal of the surrogate making the same, together with the original will, shall be delivered to the person applying for the probate, to be transmitted to the surrogate directed to take the examination.

See Laws of 1841, ch. 129.

$ 14. The surrogate by whom any such order and will shall Duty of be received, shall, on the Monday mentioned in such order, such surro appoint a time and place for taking such examination, and that case. give notice thereof to any person who may attend such surrogate for the purpose of hearing such examination; and at

ᏢᎪᎡᎢ II,

the time and place so appointed, or at such other time and place as it may be found necessary to designate by adjournment, the surrogate, in the presence of such persons as may choose to attend, shall proceed to take the examination of such aged, sick or infirm witness, in the same manner and with the like effect as though such witness had attended and been examined before the surrogate having original jurisdiction on the return of the citation. Such surrogate may issue subpoenas under his seal of office, to compel the attendance of any such witness or witnesses, for the purposes aforesaid, in like manner and with the like effect as in cases in which he has original jurisdiction.

See Laws of 1841, ch. 129.

Examination to be

witness.

$ 15. Such examination shall be reduced to writing and be signed by subscribed by the witness; and the examination, together with a statement of the proceedings before the surrogate taking the same, shall be certified by him under his seal of office, and be returned without delay to the surrogate who ordered such examination.

See Laws of 1841, ch. 129.

S 16. Upon the deposition so returned, together with such other proofs as may have been adduced before him, the surof the proof rogate to whom the original application was made, shall, on of any such the day to which the proceeding in his court had been ad

journed, or as soon thereafter as practicable proceed to determine on the sufficiency of the proof of any such will.

See Laws of 1841, ch. 129; 9 Pai., 123.

Oath of per

ing will in

all cases to

be taken, &c.

S17. No written will or real or personal estate, or both, Bon produc shall be deemed proved, until the witnesses to the same residing within this state at the time of such proof, of sound mind and competent to testify, shall have been examined pursuant to law, as herein before prescribed; and in all cases the oath of the person who received the will from the testator, if he can be produced, together with the oath of the person presenting the same for probate, stating the circumstances of the execution, the delivery, and the possession thereof, may be required; and before recording any will, or admitting the same to probate, the surrogate shall be satisfied of its genuineness and validity.

2 B., 387.

S 18. The tenth, eleventh, fourteenth and fifteenth sections of title first, chapter sixth, of the second part of the Revised Statutes, shall be applicable to wills of both real and personal estate, or either; and the said tenth section shall apply to proceedings by citation under this act, in the same manner that it now applies to proceedings on notice.

6 N. Y., 198.

Surrogate to deter

mine the

$ 19. When any will shall be recorded as a will of real real estate. estate, it shall not be necessary to record the same as a will

Will recorded as

of personal estate.

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